As companies venture into foreign markets, they may come across legal conflicts stemming from variances in laws, regulations, business customs, linguistic and cultural barriers, and misunderstandings. Disputes are inevitable and integral part of domestic or international business around the world. Alternative dispute resolution mechanisms are necessary for resolving business disputes through objective consideration as well as people’s perception.
Arbitration, perhaps the most popular and widely known dispute resolution process , is a consensual dispute resolution process based on the parties' agreement to submit their disputes for resolution to an arbitral tribunal usually composed of one or three independent arbitrators appointed by or on behalf of the parties.
Arbitration has been used most widely in commercial disputes as a private alternative to litigation. The advantages of arbitration are numerous because arbitration is in principle a private court, providing, in general, more efficient and faster services than regular courts. It resolves all disputes pertaining civil-legal and economic-legal requirements which may be subject to arbitration, unless prohibited by law.
International commercial arbitration, the most common form of international arbitration, occurs between parties based in different countries. Businesses from different countries generally prefer to arbitrate their disputes rather than adjudicate them in the courts of one side or another. This is because they believe an international tribunal is likely to be more independent of national prejudices and more knowledgeable about international business practices than an ordinary national court of law would be.
Similar to arbitration, technology has become a part of our lives. The interaction between technology and arbitration should not be seen as a question for the future, but rather as something that is happening right now. Arbitration has been altered by the digital world in the same way as other forms of litigation.
The emergence of electronic evidence has influenced the process of the gathering and assessment of evidence in electronic form. The constant development of new technologies is creating many new challenges and these challenges relate to how technology can be properly integrated to best meet the needs of arbitration. Therefore, such new technologies should provide tools to improve the process of conducting arbitral proceedings.
Phishing and business email compromise are some technology related issues across the globe that affect commercial transactions. Phishing is a cybercrime that steals credentials from users by masquerading as trustworthy entities in electronic communication. Meanwhile, BEC is a form of phishing attack where a criminal attempts to trick a budget holder into transferring funds, or revealing sensitive information. BEC attacks are directed to targeted and specific individuals compared to Phishing.
Parties usually engage the services of a digital forensic expert for disputes arising from Phishing and BEC in order to determine what happened, when it happened, why it happened, how it happened, and who was involved. Digital forensics process involves the: search, acquisition, preservation, and maintenance of digital evidence; description, explanation and establishment of the origin of digital evidence and its significance; the analysis of evidence and its validity, reliability, and relevance to the case; and the reporting of evidence pertinent to the case.
A digital evidence is a file that contains information about the facts of a case and is generated, modified, sent, received or stored by electronic, magnetic or other means. The term "digital evidence" is connected with the term "metadata" which includes data about these documents (for example, the day of issuance, name of the author, the history of changes and characteristics of the document, etc.). Digital evidence examination approaches for Phishing and BEC usually include sorting and indexing, record selection, filter and display criteria, multi-file processing, fuzzy logic matching, correlation analysis, and e-mail header analysis.
In a Philippine experience, a dispute was amicably resolved after a digital forensic expert engaged by one of the parties to the dispute during the arbitration proceedings reported that the Phishing and BEC were perpetuated by a fraudster who is not connected to any of the parties.
The use of digital forensic science in the above Philippine experience in international commercial arbitration may be said to be in keeping with the foundations of arbitration, i.e., natural justice and due process. For, the forensic expert was able to report on: what happened, when it happened, why it happened, how it happened, and who was involved. The said experience is also compatible with one of the key features of arbitration which is speedy resolution of disputes.